Disputology: The US and East Asia’s Sovereignty Disputes

China’s breakneck land reclamation and militarization of the South China Sea is making everyone else nervous, and rightly so. Think what you will about China’s motives and intentions, the fact is that a relatively stable status quo is rapidly destabilizing and emotions are running high.

There is more at stake here than access to resources and the security of vital sea lines of communication. The big issue is the future of global order. By insisting that a dubious version of history gives it maritime and territorial rights over the entire South China Sea, Beijing is, in effect, challenging core principles of international law enshrined in the United Nations Convention on the Law of the Sea (UNCLOS) that assign maritime and territorial rights on the basis of geography alone. It is as though Beijing were claiming the right to drive on the left-hand side of the road while everyone else drives on the right.

The United States finds itself in a weak and awkward position, legally and diplomatically speaking, not only because it has not yet ratified UNCLOS (although it generally abides by its principles), but because of its well-meaning but ill-conceived policy of not taking sides in sovereignty disputes. The desire not to become unnecessarily embroiled in others’ spats, and the desire not to be seen undermining the rule of law by throwing its weight around, are both eminently understandable. But as a practical matter, the policy is problematic because it often needlessly comes across as cowardice, hypocrisy, hesitation, or indifference (recall that in 1990 Saddam Hussein misinterpreted it as a tacit green light to occupy Kuwait).

There is, in fact, a relatively easy fix available: Washington simply needs to articulate a clear set of criteria by means of which it will acknowledge whether sovereignty is in dispute. With this change, Washington can have its cake and eat it too.

At present, the United States, in effect, without saying so formally, considers sovereignty in dispute when prevailing discourse says it is. This de facto criterion is, of course, impressionistic, but in most cases causes no particular difficulty. There are times and places, however, when it does. Britain, for example, insists that there is no question of its sovereignty over the Falklands/Malvinas; Japan insists that there is no question of its sovereignty over Senkaku/Diaoyu; and South Korea insists that there is no question of its sovereignty over Dokdo/Takeshima. These are all important U.S. allies. By “taking no position” on whose territory these islands really are, Washington is, in effect, saying that London, Tokyo, and Seoul are just plain wrong. Apart from being bad alliance relations, this invites doubt about Washington’s intentions. Japanese leaders are confused and concerned, for example, by Washington’s insistence that the Senkakus fall within the scope of the U.S.-Japan Security Treaty but its unwillingness to say flatly that the islands actually belong to Japan. Substitute Xi Jinping for Saddam Hussein and the Senkakus for Kuwait and you can understand Tokyo’s concern.

In actual fact, it is not true that the United States always “takes no position” on sovereignty disputes. Machias Seal Island in the Gulf of Maine, where the United States is a claimant, is a case in point. If Washington is willing to be judge in its own case, why not in others’?

A better criterion would be the following: the United States should consider sovereignty to be in dispute if either (a) both claimants (or at least two in the case of multiple claimants) agree that it is, or (b) if one claimant formally offers to have the dispute adjudicated or arbitrated—whether or not the other claimant agrees. Where neither condition is satisfied, Washington would be free to take a position should it so choose, and would do so in accordance with prevailing principles of international law as interpreted, for example, by an expert panel of jurists.

This relatively minor change in U.S. policy would have a number of salutary effects in the South China Sea. In addition to reducing ambiguity and potentially increasing Washington’s options, it would signal strong moral support for the efforts of the Philippines and Vietnam to promote the rule of law and potentially encourage others to do so as well—thus reinforcing an important norm of peaceful dispute resolution. It would also give states unwilling to go that route an incentive to get their legal ducks in order. China would be unhappy in the short run, of course, but would have difficulty coming up with principled objections to what is, after all, a completely even-handed policy.

Elsewhere the change would be beneficial as well. If China truly wished to make sure the United States did not take sides in its dispute with Japan over the Senkaku/Diaoyu Islands, the way to do it would be clear: to take the issue to the International Court of Justice (ICJ). Japan could hardly object, as it has already accepted mandatory ICJ jurisdiction. If China refused to go to the ICJ, Washington would be free to come off the fence on sovereignty.

The change would also get the United States out of an uncomfortable jam between two important allies, Japan and South Korea. South Korea administers Dokdo, just as Japan administers the Senkakus, and rightly wonders why Washington is willing to commit to the defense of the latter but not the former. Since Japan has already offered to take Dokdo/Takeshima to the ICJ, this minor policy change would get Washington off the hook.

Washington’s hand would be strongest, of course, if it ratified UNCLOS. Its unwillingness to do so when 166 countries (including China) have signed up seems strangely at odds with its very strong interest in promoting and defending the very principles UNCLOS enshrines. Perhaps that day will come. In the meantime, however, the United States would do well to tell the world how it will know a sovereignty dispute when it sees one.

The opinions expressed in this article/multimedia are those of the author(s) and do not necessarily reflect the views of CIGI or its Board of Directors.

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